CITY of ALBUQUERQUE
TWENTIETH COUNCIL
COUNCIL BILL NO. R-13-243 ENACTMENT NO. ________________________
SPONSORED BY: Dan Lewis
SPECIAL ELECTION RESOLUTION
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To Submit To The Voters Of The City Of Albuquerque An Ordinance Proposed Pursuant To Article Iii, Section 3, The Direct Legislation Provision Of The City Charter, At A Special Municipal Election To Be Held In The City Of Albuquerque On November 19, 2013 To Approve Or Disapprove The Proposed Ordinance As Set Forth Herein; Prescribing Other Details In Connection With The Special Municipal Election.
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WHEREAS, the City of Albuquerque City Charter (the "Charter") authorizes direct legislation by voter initiative provided that certain minimum requirements are satisfied, including that a minimum number of registered voters have signed the petition; and
WHEREAS, on August 28, 2013 the City Clerk filed a certification with the City Council certifying that the requisite number of signatures were obtained and verified as required by the Charter to submit the proposed ordinance set forth below (the " Proposed Ordinance") to the voters of the City of Albuquerque; and
WHEREAS, as set forth in the City Charter, when an election is required pursuant to the "direct legislation by voter initiative" process, such an election must be held within ninety (90) days of the filing of the petition; and
WHEREAS, Section 3-8-35 NMSA 1978, a portion of the Municipal Election Code, states that when a special election is required by law, an election resolution shall be adopted by the governing body calling for the election and shall state, in part, the purpose for calling the election, the date of the election, the questions to be submitted to the voters, and whether paper ballots or voting machines will be used in the election; and
WHEREAS, the Charter requires that this special election be held, and this resolution shall serve as the election resolution required by Section 3-8-35 NMSA 1978.
BE IT RESOLVED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF
ALBUQUERQUE:
SECTION 1. On November 19, 2013, a special municipal election ("Special Election") shall be held in Albuquerque, New Mexico. The City Clerk is instructed to place the following Proposed Ordinance on the ballot, and the qualified voters of the City of Albuquerque shall be permitted to vote "for" or "against" the Proposed Ordinance:
PROPOSED ORDINANCE
"Section 1. SHORT TITLE
This ordinance may be cited as the "Pain Capable Unborn Child Protection Ordinance."
Section 2. FINDINGS AND AUTHORITIES IN SUPPORT
The Citizens of Albuquerque declare the following:
(1) Pain receptors are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcortical plate by no later than 20 weeks after fertilization.
(2) By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human.
(3) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.
(4) For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia. In the United States, surgery of this type is being performed by 20 weeks after fertilization and earlier in specialized units affiliated with children's hospitals.
(5) Recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.
(6) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.
(7) In adult humans and in animals, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.
(8) The position, asserted by some commentators, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who had found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from engaging in vigorous movement in reaction to invasive surgery.
(9) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier.
(10) The Citizens of Albuquerque assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.
(11) The compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain is asserted in addition to the compelling interest in protecting the lives of unborn children from the stage of viability. Neither governmental interest is intended to replace the other.
(12) The Citizens of Albuquerque are empowered by Chapter Three of New Mexico Statutes Annotated and Article Three of the Charter of the City of Albuquerque to affirmatively act to secure health and safety within its geographical borders.
Section 3. PAIN-CAPABLE UNBORN CHILD PROTECTION.
(a) IN GENERAL. - Chapter 12, Article 2, Albuquerque Code of Ordinances, is amended by inserting after section twenty-eight the following:
"§12-2-29. PAIN-CAPABLE UNBORN CHILD PROTECTION.
(a) UNLAWFUL CONDUCT. - Notwithstanding any other provision of law, it shall be unlawful for any person to perform an abortion or attempt to do so, unless in conformity with the requirements set forth in subsection (b).
(b) REQUIREMENTS FOR ABORTIONS. -
(1) The physician performing or attempting the abortion shall first make a determination of the probable post-fertilization age of the unborn child or reasonably rely upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the pregnant woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to make an accurate determination of post-fertilization age.
(2) (A) Except as provided in subparagraph (B), the abortion shall not be performed or attempted, if the probable post-fertilization age, as determined under paragraph (1), of the unborn child is 20 weeks or greater.
(B) Subject to subparagraph (C), subparagraph (A) does not apply if -
(i) in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions.
(C) Notwithstanding the definitions of 'abortion' and 'attempt an abortion' in this section, a physician terminating or attempting to terminate a pregnancy under an exception provided by subparagraph (B) may do so only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk of -
(i) the death of the pregnant woman; or
(ii) the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman;
than would other available methods.
(c) BAR TO PROSECUTION. - A woman upon whom an abortion in violation of subsection (a) is performed or attempted may not be prosecuted under, or for a conspiracy to violate, subsection (a), or for an offense under section 2, 3, or 4 of this title based on such a violation.
(d) DEFINITIONS. - In this section the following definitions apply:
1. ABORTION. - The term 'abortion' means the use or prescription of any instrument, medicine, drug, or any other substance or device -
(A) to intentionally kill the unborn child of a woman known to be pregnant; or
(B) to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than -
(i) after viability to produce a live birth and preserve the life and health of the child born alive; or
(ii) to remove a dead unborn child.
2. ATTEMPT AN ABORTION - The term 'attempt', with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion.
(2) FERTILIZATION. - The term 'fertilization' means the fusion of human spermatozoon with a human ovum.
(3) PERFORM. - The term 'perform', with respect to an abortion, includes induction of an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion.
(4) PHYSICIAN. - The term 'physician' means a person licensed to practice medicine and surgery or osteopathic medicine and surgery, or otherwise legally authorized to perform an abortion.
(5) POST-FERTILIZATION AGE. - The term 'post-fertilization age' means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.
(6) PROBABLE POST-FERTILIZATION AGE OF THE UNBORN CHILD. - The term 'probable post-fertilization age of the unborn child' means what, in reasonable medical judgment, will with reasonable probability be the post-fertilization age of the unborn child at the time the abortion is planned to be performed or induced.
(7) REASONABLE MEDICAL JUDGMENT. - The term 'reasonable medical judgment' means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
(8) UNBORN CHILD. - The term 'unborn child' means an individual organism of the species homo sapiens, beginning at fertilization, until the point of being born alive.
(9) WOMAN. - The term 'woman' means a female human being whether she has reached the age of majority.
(e) SEVERABILITY. - If any part or application of the Pain-Capable Unborn Protection Ordinance is held invalid, the remainder or application to other situations or persons shall not be affected."
FOR________ AGAINST_______
SECTION 2. SPECIAL ELECTION PROCESS. As set forth herein, and dependent upon the results of the October 8, 2013 Regular Municipal Election, the City Clerk shall conduct the Special Election on November 19, 2013 pursuant to either:
(A) the Mail Ballot Election Act, §1-23-1, et seq. NMSA 1978 ("all-mailed" election); or
(B) the provisions for a Special Election in the Municipal Election Code (Chapter 3, Articles 8 and 9, NMSA 1978) ("in-person election") for which a list of the locations of Early Voting locations, Voting Centers and the consolidation of precincts is attached to this Resolution as Exhibit A.
SECTION 3. The type of election will be determined by the results of the Regular Municipal Election to be held on October 8, 2013.
SECTION 4. If the Regular Municipal Election on October 8, 2013 results in a requirement for a runoff election for any candidate position, the Special Election called for in this Resolution shall be conducted as an in-person election pursuant to the Municipal Election Code at the locations set forth in Exhibit A attached hereto and the following shall apply:
(A) The polls for this election shall open at 7:00 a.m. and shall close at 7:00 p.m. on November 19, 2013.
(B) Absentee voting shall take place as authorized by law. Eligible voters may request applications for absentee ballots from the Office of the City Clerk, 600 2nd Street NW. Plaza del Sol Building, 7th Floor, Albuquerque, New Mexico. Eligible voters may also request an application for an absentee ballot in person, via email to absenteeapplication@cabq.gov, or by calling 311. Completed applications shall be returned to the City Clerk prior to 5:00 p.m. on November 15, 2013. The City Clerk may issue absentee ballots to approved applicants no earlier than 35 days prior to the election and until 5:00 p.m. on November 15, 2013. Absentee ballots must be received by the City Clerk through the mail or by hand delivery no later than 7:00 p.m. November 19, 2013, the day of the election.
(C) Absentee ballots may be marked in person at the Office of the City Clerk and at the City Records Center, 604 Menaul NW, Albuquerque, New Mexico, beginning no earlier than 35 days prior to the election and not later than 5:00 p.m. November 15, 2013.
(D) Early Voting shall begin on Wednesday, October 30, 2013 and end on Friday, November 15, 2013 at the Office of the City Clerk and the other designated Early Voting Locations on Exhibit A attached hereto. Early Voting shall take place during the hours of 9:00 a.m. and 6:00 p.m. Monday through Friday.
(E) In accordance with Section 1-3-4 NMSA 1978, the City Clerk shall consolidate precincts, allowing voters to cast their ballot at any Municipal Voting Center open for Early Voting, or on Election Day, regardless of the precinct in which the voter is registered. Municipal Voting Centers shall be placed throughout the City.
(F) There will be Twelve (12) Early Voting Locations and Fifty (50) Voting Centers open on Election Day throughout the City.
(G) A list of the locations of the Early Voting Locations, Municipal Voting Centers and the consolidation of precincts is attached to this Resolution as Exhibit A. The consolidation of precincts and the locations of the Municipal Voting Centers are approved by the Council.
(H) Voters shall mark paper ballots. Ballots cast during Early Voting and Election Day shall be electronically tabulated after the polls close on Election Day. Absentee ballots shall be electronically tabulated pursuant to Section 2-4-18 ROA 1994.
SECTION 5. If the results of the Regular Municipal Election on October 8, 2013 do not necessitate a runoff election for any candidate position, the Special Election called for in this Resolution shall be conducted as an "all-mailed" election in accordance with the Mail Ballot Election Act, §1-23-1 et seq. NMSA 1978 and the following shall apply:
(A) The City Clerk shall cause an absentee ballot to be mailed to each qualified registered elector of the City of Albuquerque along with a statement that there will be no polling place for the election. Voters shall not be required to apply for an absentee ballot.
(B) The City Clerk shall not mail the absentee ballots earlier than thirty-five days prior to the election and shall complete mailing by the fifth day before the election.
(C) The Proposed Ordinance shall be submitted on paper absentee ballots. The votes cast for and against the Proposed Ordinance shall be tabulated on the election tabulation system counters. The ballots shall be printed in English and Spanish with plain clear type in black ink on white material of such size as will fit the voting machines. The complete Proposed Ordinance, in English and Spanish, shall be placed on the absentee ballot so that the complete question may be examined by the qualified voters before they vote.
(D) Absentee ballots are due to the Office of the City Clerk on or before 7:00 p.m. on Election Day. Voters may return their ballot to the Office of the City Clerk by mail or in person by hand delivering the ballot to the Office of the City Clerk, 600 2nd Street NW, Albuquerque, New Mexico 87103. Only the voter, caregiver to that voter or a member of that voter's immediate family may deliver that voter's absentee ballot to the City Clerk in person.
(E) The election on the Proposed Ordinance shall be held and conducted in accordance with the Mail Ballot Election Act, the Municipal Election Code and the Election Code of the City Charter.
SECTION 6. The following shall apply in both an "all mail" election and an "in person" election:
(A) The City's qualified, registered electors are eligible to vote on the election question. No judge or clerk of the Special Election shall allow a person to vote unless he or she is duly registered as a voter with the Bernalillo County Clerk and unless he or she meets the qualifications of a resident elector.
(B) Any person who is otherwise qualified to vote and who is not currently registered to vote may register at the office of the Clerk of the County of Bernalillo, 6th Floor, One Civic Plaza, Albuquerque, New Mexico, or at the office of any duly appointed deputy registration officer on or before 5:00 p.m., on October 22, 2013.
(C) The vote on the Proposed Ordinance shall be canvassed as nearly as is possible in accordance with the Municipal Election Code, and the Election Code of the City Charter, and the City Clerk shall certify the results of the election and shall enter them in the official minute book of the City. (D) For further information concerning this Special Election, consult the Office of the City Clerk, 600 2nd Street NW, Plaza del Sol Building, 7th Floor, Albuquerque, New Mexico, 87103 or visit www.cabq.gov/clerk <http://www.cabq.gov/clerk>.
(E) The officers of the City are hereby authorized and directed to take all action necessary and appropriate to effectuate the provisions of this Resolution.
SECTION 7. The City Clerk shall cause the full text of the Proposed Ordinance set forth above to be published for four consecutive weeks in English and Spanish, the last publication to be not more than two weeks prior to the election at which time the Proposed Ordinance shall be submitted to the electors of the City for their approval or rejection, and shall further provide notice of the content and purpose of the Proposed Ordinance in both English and Spanish to inform electors about the Proposed Ordinance in the time and manner provided by law. This resolution for Special Election shall be published once a week for four consecutive weeks with the first publication between fifty and sixty days before the election.
SECTION 8. SEVERABILITY CLAUSE. If any section, paragraph, sentence, word, or phrase of this Resolution is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Resolution. The Council hereby declares that it would have passed this Resolution and each section, paragraph, sentence, word or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
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